National Police Service Commission NPSC

Open. Accountable. Responsible

Contents

Introduction

The NPSC is empowered to recruit officers to both the Police Services (National and Administration Police Service) and make appointments of top officers. These powers were previously with the Office of the President.

The NPSC will be headed by six civilian Commissioners and the Inspector-General and the two deputy Inspector-Generals.

Introduction

As a Commission, the National Police Service Commission NPSC, will act in such a manner as to "....... (a) protect the sovereignty of the people; (b) secure the observance by all State organs of democratic values and principles; and (c) promote constitutionalism." (Article 249).

Authority

This is a new Commission under the Constitution of Kenya 2010 anchored by Article 246, of Chapter 14 - National Security, and Article 248 of Chapter 15 - Commissions and Independent Offices. Excerpts:

246. (1) There is established the National Police Service Commission.

248. (2) The commissions are— (j) the National Police Service Commission.

Previously, the Police (who were under the direct control of the Ministry of Internal Security under the Office of the President), conducted their own recruitment. These recruitment exercises were often not without controversy and generated strong public accusations of nepotism and lack of transparency - complaints that went unheeded.

246. (3) The Commission shall— (a) recruit and appoint persons to hold or act in offices in the service, confirm appointments, and determine promotions and transfers within the National Police Service;

Thus, the NPSC has administrative authority over both the Kenya Police Service and the Administration Police Service; i.e., it is now the sole authority over recruitment, staffing, and posting operations of all Police Officers.

Indeed, in July 2014, the Commission undertook its second recruitment exercise of Police Officers (the first was in 2012). And, like in previous years, there were widespread accusations of bribery, nepotism, and other malpractices, prompting the Commission to constitute an investigative panel barely a week after the conclusion of the exercise to receive and investigate the claims.

Although the NPSC appealed the High Court's decision soon after, the matter was not to be brought to its logical conclusion as a series of unforgettable (and regrettable) events took place in the country in April of 2015 that led to the voiding and subsequent withdrawal of the appeal.

It all began with a deadly terror attack on the Garissa University College in the early morning of the 2nd of April in which 148 people, mostly students, lost their lives.

The Commission found itself between a rock and a hard place when the President, in an address to the Nation later that day, ordered the Inspector General of Police to prepare to immediately to receive the 10,000 trainees whose recruitment by the NPSC had, as stated above, been nullified by the High Court in a ruling on the 31st October 2014.

Said the President, "I further direct the Inspector-General of Police to take urgent steps and ensure that the 10,000 recruits, whose enrolment is pending, promptly report for training at the Kenya Police College, Kiganjo."

“I take full responsibility for this directive. We have suffered unnecessarily due to shortage of security personnel. Kenya badly needs additional officers, and I will not keep the nation waiting.”

135. A decision of the President in the performance of any function of the President under this Constitution shall be in writing and shall bear the seal and signature of the President.

However, in a (clever) move designed to work around the brewing legal storm created by the President's verbal directive, and to cool the heightened public anxiety over the possible blatant disobedience of a direct court order by the national executive, the Commission stepped in with its own invitation for a fresh police recruitment exercise to be conducted on the 20th of April countrywide:

249. (1) The objects of the commissions and the independent offices are to—(b) secure the observance by all State organs of democratic values and principles; and (c) promote constitutionalism.

Thus both the President's and the IGP's orders that were in clear contravention of a judicial ruling (and the Constitution) were never to be.

For close to a year after the General Elections of March 2013, the Commission and the Inspector General of Police IGP (and who by the way is a member of the same Commission) were constantly differing in public on who had administrative authority over officers in the Service. So much so, that on the 27th of March 2014, the High Court was called upon by way of a civil petition to make a determination on the legality (or otherwise), of deployment (as opposed to appointments) of County Police Commanders by the Inspector General in June of the previous year.

By reassigning this authority from the Service and by implication, the Office of the President, to an independent Commission, the Constitution has (hopefully) effectively freed the Police from undue interference and manipulation from the political class (and the executive) and consequently strengthened its independence and ability to carry out its mandates.

The reader should bear in mind that up and until June 2014, the National Police Service Act, 2011 authorised the Commission to take care of the recruitment and appointment of the top office of the IGP. Excerpts from Section 12 of the Act:

12. (1) Whenever a vacancy arises in the office of the Inspector-General, the Commission shall, ....... declare the vacancy, and request for applications. (3) The Commission shall consider the applications, conduct public interviews and shortlist at least three persons qualified for the position advertised for under subsection (1). (5) The Commission shall ....... forward the shortlisted names to the President for nomination of the Inspector-General. (6) The President shall, ....... nominate a person for appointment as Inspector-General from among the shortlisted names and submit the name of the nominee to Parliament for approval; .......

However, on the 26th of June 2014, all that changed when the President assented to the National Police Service (Amendment) Bill 2013 that inter alia, allowed the Head of State to nominate the IGP without reference to the Commission. Excerpts from the National Police Service Amendment Act 2013:

12. The Principal Act is amended by deleting section 12 and substituting therefore the following new section 12— — 12. (1) Pursuant to Article 245 (2) (a) of the Constitution, the Inspector-General of the Service shall be appointed by the President with the approval of Parliament. (2) The President shall nominate a person for appointment as the Inspector-General and submit the name of the nominee to Parliament.

Roles and Functions

Specifically, the role of the NPSC is to protect the rights and liberties of the men and women serving in the Kenya Police Service and the Administrative Police Service; and by extension, guarantee the rights and liberties of the people of Kenya when seeking Police services. Excerpts from Article 246:

246. (3) The Commission shall— (b) observing due process, exercise disciplinary control over and remove persons holding or acting in offices within the Service; and (c) perform any other functions prescribed by national legislation.

This is important as a measure of checks and balances to ensure that every officer is performing their calling to the public and working without fear of or intimidation by their superior officer.

In the past, the Police handled their own internal affairs leading to partiality, cover-ups, intimidation, arbitrary sackings, etc. However, independent investigations of such misconduct especially those which touch on the wider public are presently being performed by a different agency constituted for that purpose - the Independent Policing Oversight Authority IPOA.

IPOA's membership is purely civilian (unlike that of the NPSC), i.e., does not have any serving Police Officers. In a sense, the Authority complements the functions of the Commission: to provide "...... civilian oversight of the work of the Police; ........". Excerpts from Section 5 and 6 of the IPOA Act, 2011:

5. The objectives of the Authority shall be to— (a) hold the Police accountable to the public in the performance of their functions;

6. The functions of the Authority shall be to— (a) investigate any complaints related to disciplinary or criminal offences committed by any member of the Service, whether on its own motion or on receipt of a complaint, and make recommendations to the relevant authorities, including recommendations for prosecution, compensation, internal disciplinary action or any other appropriate relief, and shall make public the response received to these recommendations;

One of the most important reports so far by IPOA touching on the performance of the Police was published in October 2014 following investigations on the June 15-16 terror attacks in Mpeketoni in the County of Lamu that led to the death of scores of people, exposed serious flaws in the structure, command, and logistic systems not only within the police, but also between the service and other national security organs and the provincial administration.

These remarks by Joseph Nkaissery, himself a retired Kenya Army Major-General, appeared to express a contempt for civilian oversight and authority over uniformed agencies. His views elicited mixed reactions from the public given that his appointment, which was well received, came at a time when the country had suffered frequent and deadly terror attacks that were mostly viewed as being as a result of an ineffective leadership in the Ministry and the Police - for which his predecessor Joseph Ole Lenku was removed from office by the President while the Inspector General of Police David Kimaiyo opted to retire. For much of their time in office, the two faced sustained public calls for them to resign.

Only when the Police Service is properly functioning can it serve the interests of the wider public.

Composition

Johnstone Kavuludi, Chair of the National Police Service Commission

The NPSC shall ensure that the recruitment of the officers and the top leadership of both the Police Services reflects the diversity of Kenya's peoples:

246. (4) The composition of the National Police Service shall reflect the regional and ethnic diversity of the people of Kenya.

The Commission will have nine members when fully constituted, to serve for a six year term:

(2) The Commission consists of— (a) the following persons, each appointed by the President— (i) a person who is qualified to be appointed as a High Court Judge; (ii) two retired senior police officers; and (iii) three persons of integrity who have served the public with distinction; (b) the Inspector-General of the National Police Service; and(c) both Deputy Inspectors-General of the National Police Service.

The six Commissioners listed in Clause (2) (a) were recruited by a specially constituted board, while those in clauses (b) and (c) were recruited by the six who were appointed by the President in October 2012, after vetting by the National Assembly.

References:

1. Constitution of Kenya, 2010. National Council for Law Reporting. The Attorney-General.